I have been a CPA for over 30 years focusing on taxation. I have extensive experience with partnerships, real estate and high net worth individuals.
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War Tax Resisters - Don't Call Them Frivolous

Seal of the United States Internal Revenue Service. The design is the same as the Treasury seal with an IRS inscription. (Photo credit: Wikipedia)

Despite my ability to find large amounts of humor in original source tax material, taxes are a serious matter. The IRS has been directed by Congress to stamp out frivolity in tax submissions. Code Section 6702 requires the Service to make a list of frivolous tax positions. There is some pretty wacky stuff on the list like the idea that you can cut your tax by writing “nunc pro tunc” on your return (They don’t say anything about “Ali ali oxen free”. Maybe you can try that). There is one item on the list of frivolous positions, that I don’t like to call frivolous:

The First Amendment permits a taxpayer to refuse to pay taxes based on religious or moral beliefs.

That is what Elizabeth Boardman was in US District Court over. Ms. Boardman has been at peace activism for a long time. She is an author of several books including “Taking A Stand: A Guide To Peace Teams And Accompanimnet Projects”. She went to Iraq to act as part of a peace team, where she tells me she met my good friend Tom Cahill. I asked Tom for a little more background on her, but his memory of her is a little hazy. Frankly, it is understandable. Tom is much more memorable than most people you will meet. Like the IRS, the District Court did not have much sympathy for her views. Here is some of the story:

When filing her federal tax returns for the 2007 and 2008 tax years, Plaintiff fully completed the returns with accurate information but remitted only about half of her federal income tax liability. In a letter attached to the tax returns, Plaintiff explained that “her conscience and religious beliefs would not allow her to pay the full amount due.” Plaintiff’s letter also offered evidence that the withheld funds were on deposit with a financial institution and maintained that she would pay the funds if they were allocated toward peaceful purposes.

Further correspondence between Plaintiff and Defendant [IRS] resulted in Defendant stating that Plaintiff’s justification was frivolous and not supported by law. Once Plaintiff’s argument was deemed “frivolous,” the Tax Relief and Health Care Act of 2006 (“TRHCA”) allowed Defendant to deny any additional administrative or judicial review. As a result, Plaintiff’s demand for a Tax Court determination was unsuccessful. Plaintiff also claims that Defendant misrepresented various aspects of the tax collection process and misconstrued Plaintiff’s statements. Plaintiff further alleges that Defendant’s threats of imminent seizure compelled Plaintiff to pay her outstanding liability for the 2008 tax year.

…….Plaintiff also takes offense to the word “frivolous” being used to describe a taxpayer’s reliance on moral or religious grounds as a justification for refusing to pay their taxes. Although Plaintiff claims that she does not challenge the tax system or “seek to restrain assessment or collection of tax,” she does request a permanent injunction forcing Defendant to promulgate new procedures for collecting taxes. In doing so, Plaintiff “seeks to enforce the intent of Congress, which is to protect and preserve an established religious practice.”

The District Court was with the IRS.The Court has no doubt that ruling in Plaintiff’s favor would negatively impact Defendant’s established methods of assessing taxes. It is also clear that compelling Defendant to adopt procedures catering to the religious or moral views of every taxpayer would significantly burden tax collection. Indeed, the costs of administering the tax system may become prohibitively expensive, threatening the system’s integrity, if Defendant allocated tax revenue based on the individualized beliefs of each taxpayer. Thus, the Court agrees with Defendant that Plaintiff’s suit challenges statutory framework pertaining to tax assessment and collection, and, if Plaintiff is successful, she would “impermissibly restrain and hamper [Defendant's] ability to assess and collect taxes.”

Ms. Boardman’s attorney, Robert Kovsky, thinks the District Court did not grasp their point. He wrote to me:

Our legal position is set forth in the Complaint and in our Opposition to the Motion to Dismiss. Both documents are available on my website at www.kovsky.com To summarize the legal position: Elizabeth is maintaining a religious practice of war tax resistance similar to practices that have been carried on by many persons for many years. The practice requires filing of full and complete tax returns, accompanied by a refusal to pay in part or in whole for reasons based on religion or conscience. It is understood that the IRS will move to collect any unpaid amount, plus statutory costs and penalties. The resister feels compelled by religion or conscience to follow this route rather than to pay as of their own free will for war and weapons.

We contend that the practice of religious war tax resistance was given safe harbor in an Act of Congress in 1982 and has been recognized by the courts. It appears from the experience of Elizabeth, as alleged in the Complaint, that the IRS is now trying to suppress such practices. The policy of the IRS set forth on its website is to declare that such a practice is “frivolous.” We contend that Elizabeth’s practice is protected by the Free Exercise of Religion Clause of the First Amendment. We contend that the IRS is required by the Religious Freedom Restoration Act of 1993 to respect and accommodate the practice.We believe that the District Court did not properly address our contentions in its decision to dismiss the case and we have filed an appeal to the Ninth Circuit Court of Appeals. Just today, the Court of Appeals filed a Time Schedule Order setting initial dates for the filing of briefs. As of now, our opening brief is due on or before April 8, 2013.

You may want to check out the briefs he provides in his link to get a better feel for the argument. I can understand the IRS not having a lot of patience with this activity, but then I always remember Henry David Throreau. Thoreau’s extremely influential work “Civil Disobedience” was inspired by a night he spent in the Concord jail after he refused to pay poll tax to protest the Mexican War. For more information on War Tax Resistance check this out.

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I’m a lawyer who has consulted on several cases in which people who were conscientious objectors to participating in war claimed a right to pay taxes other than into the general treasury, just as they have a statutory right to perform alternative service instead of military service if drafted.

The government would be far less burdened by setting up a Peace Tax Fund for such taxpayers’ moneys than it has been by supervising individuals’ alternative service! There has been a Peace Tax Fund bill in Congress in every Session since the 1960s, but now it could be put into effect with a simple check-off box on the 1040, right along with the check-off box that diverts some taxes into a campaign finance fund.

A computer will track how much money is in each category, and that’s the end of story. (Unless, of course, conscientious objectors to paying for war eventually dominate the nation’s population, in which case the general Treasury’s funds may be insufficient to cover the cost of the continuing war efforts.)

Barring access to justice on the grounds that a conscientious objection is “frivolous” means that the feasibility calculus (“catering to the religious or moral views of every taxpayer would significantly burden tax collection,” as Peter Reilly quotes the court) can never be conformed to the updated reality of a computerized IRS and Treasury.

Of course, it also ignores history – war tax resistance was not merely an idea of famous philosophers of old, but was a standard practice of many Quakers and others dating back to the French and Indian Wars, when war funding was refused in some areas. Pacifist objections were as important as Tory objections when it came to feeding and equipping our Army during the Revolution. A “freedom of conscience” was even included in the New York State Constitution in the 1770s.

There are many ways to resolve or even dismiss the issue of conscientious objection rights. But to say that people should be heavily penalized for even voicing the issue, or that accommodating them with a computer tweak is just too difficult for America, are patently ridiculous ways to dispose of the conscience of a citizen.

> To affirm the religious freedom of taxpayers > who are conscientiously opposed to participation > in war, to provide that the income, estate, or > gift tax payments of such taxpayers be used for > nonmilitary purposes, to create the Religious > Freedom Peace Tax Fund to receive such tax > payments, to improve revenue collection, and > for other purposes.

I can see where the argument can be made that such a law would constitute an 1st Amendment violation; being a law “respecting the establishment of religion” and NOT simply a reasonable accommodation.

(Why should people passing a religious test be able to designate how their money is spent, while the rest can not?)

Perhaps that’s why it has been, according to report, “defeated” about 50-60 times.

I suspect that there is no statistical evidence that any bonafide, would-be participants in such a program would ever account for enough monies to change the way the Government did business, and I suspect that is probably not going to change in our lifetimes (though there’s probably not really all that much left of mine).

I suspect the “war protest” folks have a lot more they want to do regarding the promotion of their religious views than work out a scheme that allows them to pay their taxes without losing sleep at night.

I already suggested a method to solve the problem without all the hoopla, legal/political wrangling, and/or constitutional issues.

That goes something like this: just have the Quakers, et al, teach their folks to believe that the money they pay goes to nice things they think the Government finances.

Also, you did indeed earlier put your finger directly on my point: there is very little, if any, difference in practical effect between earmarking objectors’ taxes for a “Peace Tax Fund” (i.e. everything but the military) and having the taxpayer simply pretend that his dollars aren’t the ones going to the military.

So it need make no difference to the IRS, the Pentagon or the integrity of Government which way any particular dollars are dedicated, just as it makes no difference to the authorities whether a particular legal marriage is performed with full religious ceremony. So we disagree only as to how the citizens in each example should feel about that. The fact is, it makes a great deal of difference to the citizen.

If the statutes in the past 70 years or so, allowing conscientious objectors to do alternative service when drafted, is constitutional, then so is a statute allowing the same people to pay into an alternative fund when taxed. (Ironically, it was certain COs in the 1960s who, like you, protested as unconstitutional the requirement that the conscience must be religion-based. And they won – Seeger v. US, Sup Ct circa 1965.) So the Selective Service broadened its regs to include pacifist philosophy, if equally central to the citizen’s conscience and lifestyle.

You’re right that some pacifists have much greater aims than merely re-labeling their tax dollars. But those other peace-promoting activities are freely allowed already, so nothing will change as to them if the Peace Tax Fund happens. Other pacifists, of course, merely want to be left alone to do nothing – killing nobody through proxy drones.

As it is in many cases, proposing an analogy usually will not make a case and may or may not help to illustrate a point.

I don’t think your analogy between the proposed tax fund and alternative service is sufficient to get around a possible constitutinal challenge.

Here’s my attempt to explain why:

Selective Service:

> One is going to be forced to serve > and it is a reasonable accommodation > to allow alternative service.

Taxes:

> One is going to be forced to pay > and the taxpayer can believe > whatever they want about > where their personal, literal > tax payment may be spent > because there is no way to > actually trace the literal > dollars paid to any specific > government expenditure.

Also, if you reason that conscientious objector issues are not limited to the religious and survive any 1st Amendment challenge, then the analogy that might work is that you have to allow anyone, for any conscientious reason, to demand that a special fund be set up to distribute his tax funds according to the dictates of that person’s conscience.

That might past constitutional muster, but, politically and practically, it’s no way to run a government.

Better to just let Elizabeth settle for realizing she is free and welcome to believe her money goes “sunshine and butterflies” and nobody can prove otherwise.

Two problems with the logic differentiating military service from war taxes:

1) There is not, in fact, any constitutional entitlement to demand that alternative service be permitted, so whether just anyone of conscience can demand that a special fund be set up is not the decisive issue. For me, the issue is whether you can rationally exclude alternative taxation if you do choose to permit alternative service.

2) Why can’t the analogy be thus: “Taxes: One is going to be forced to pay and it is a reasonable accommodation to allow payment into a Peace Tax Fund.” (Because it’s so cheap and painless to let the CO check a box on a 1040.)

I don’t see any need to drag the definition of a conscientious objector into a discussion of what rights they have, and what rights they don’t, once they meet the definition. The Supremes just held, as to an objector who doesn’t believe in a “supreme being”, that so long as his conscience is just as central to leading his life as if he did have that belief, he can’t be discriminated against on the basis of the belief. (That was the issue because the statute defining a CO said “by reason of religious training and belief,” and still says so to this day, so far as I know.) Seeger v. US had nothing to do with any issue of what you get for being a CO; it was just about whether he was one.

I don’t suppose they are going to let you and me make the arrangements.

I like to make accommodations, where appropriate.

Here’s the one I would offer to settle the issue as between you and me, and taking into account your approach to the issue.

You propose that:

> It’s so cheap and painless to let > the CO check a box on a 1040.

I will agree, but that’s where the “cheap and painless”, in my opinion, would start moving in the other direction.

So, in order to be on record that the CO doesn’t like how the Government spends its money, let the CO have a block on the 1040 to check.

The block could be used by anyone who wanted to pacify their conscience and/or political views over how the Government spends the money.

It might look something like this:

> I hereby advise the Government that > I want my tax dollars to only go for > what I would approve of.

No further action or accounting would actually be necessary, because the Government can’t really determine, even with computers, how much of anyone’s actually tax payment goes for specific purposes, right!

Anti-abortion folks could use it. Anti-war folks could use it. Theists could use it. Atheists could use it. Anti-vaccination folks could use it. Anti-evolution folks could use it. Ad Nauseum…